NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G DAMARIS HAMPTON, EMPLOYEE

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1 NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G DAMARIS HAMPTON, EMPLOYEE CLAIMANT NORTHPORT HEALTH SERVICES, EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES, CARRIER/TPA RESPONDENT OPINION FILED JUNE 13, 2018 Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas. Respondents represented by the HONORABLE JAMES A. ARNOLD II, Attorney at Law, Fort Smith, Arkansas. Decision of Administrative Law Judge: Affirmed and Adopted. OPINION AND ORDER Claimant appeals from a decision of the Administrative Law Judge filed January 24, The Administrative Law Judge entered the following findings of fact and conclusions of law: 1. The stipulations agreed to by the parties at the pre-hearing conference conducted on August 16, 2017, and contained in a pre-hearing order filed that same date, are hereby accepted as fact. 2. The claimant has failed to prove by a preponderance of the evidence that she

2 Hampton-G sustained a compensable injury to her low back on March 15, The claimant has failed to prove by a preponderance of the evidence that she is entitled to medical treatment. 4. The claimant has failed to prove by a preponderance of the evidence that she is entitled to temporary total disability benefits from June 14, 2017 to a date yet to be determined. 5. The claimant has failed to prove by a preponderance of the evidence that her attorney is entitled to an attorney s fee in this matter. We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge's decision is supported by a preponderance of the credible evidence, correctly applies the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that the findings of fact made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission. Thus, we affirm and adopt the decision of the Administrative Law Judge, including all findings and conclusions therein, as the decision of the Full Commission on appeal.

3 Hampton-G IT IS SO ORDERED. SCOTTY DALE DOUTHIT, Chairman CHRISTOPHER L. PALMER, Commissioner Commissioner Hood dissents. DISSENTING OPINION After my de novo review of the record in this claim, I dissent from the majority opinion finding that the claimant has failed to prove by a preponderance of the evidence that she sustained a compensable injury to her low back on March 15, 2017; that the claimant has failed to prove by a preponderance of the evidence that she is entitled to medical treatment; that the claimant has failed to prove by a preponderance of the evidence that she is entitled to temporary total disability benefits from June 14, 2017 to a date yet to be determined; and that the claimant has failed to prove by a preponderance of the evidence that her attorney is entitled to an attorney s fee in this matter.

4 Hampton-G Factual and Medical Background The claimant, now 51 years old, worked for the respondent-employer as a certified nursing assistant. The claimant testified that her job duties included bathing and lifting residents, which required her to bend and lift residents who weighed up to 200 pounds. The claimant testified that on March 15, 2017 she sustained an injury to her low back when she was lifting a resident. The claimant explained that as she and a co-worker were moving the resident, the resident started to fall. To prevent the resident from falling, the claimant held her really tight. According to the claimant, she felt immediate pain in her back when this incident occurred and reported it to a nurse who was her supervisor. The following day, the claimant was sent to Dr. Jason Richey. Dr. Richey prescribed Mobic and Lorcet, and removed the claimant from work until March 21, 2017, at which time she was allowed to return to work with restrictions. An MRI, which was ordered by Dr. Salahuddin

5 Hampton-G Kaddoura 1, was taken on April 10, The MRI showed the following: IMPRESSION: 1. Mild anterior subluxation at the L4-5 level, new compared to the prior study of 3/19/ Spondylosis at T11-12, L4-5 and L5-S1 levels with posterior disc bulging/facet hypertrophy. There is mild neural foraminal narrowing at L4-5 and L5-S1 levels. The claimant was seen again by Dr. Richey on May 31, In his medical records from this date, Dr. Richey noted the following: Female patient. Initially hurt her back at Paris Health and Rehab transferring patient from chair to bed. Patient has had physical therapy on May 5, Has only been able to work a few hours a day. Has had work restrictions. Initially, I believe that she took 2 weeks off; however, we had wrote her to get light duty. Nursing home states that she did not come to work. Patient did have an MRI by her PCP, which showed mild anterior subluxation L4-L5, new compared to March 19, 2013; spondylosis at T11- T12, L4-L5 and L5-S1 with posterior disk protrusion; and mild foraminal narrowing at L4-L5 and L5-S1. Patient was initially placed on Lorcet and meloxicam, which has 1 The claimant was seen by Dr. Kaddoura on March 6, 2017 for complaints of low back pain. Dr. Kaddoura ordered an MRI as a result of that visit.

6 Hampton-G helped. The patient does have pain bending forward and twisting. I do believe the causation was due to her lifting a patient. This is new since 2013, which I believe she had a previous MRI. Since the patient continues to have pain, [I] do recommend a neurosurgical evaluation. She is to continue work restrictions and she is to continue physical therapy. She does have pain going from sitting to standing and also lifting her right leg up. The claimant was removed from work on June 19, 2017 and, after, this removal was renewed several times. On August 2, 2017, it was noted that the claimant should remain off work until she was seen by a neurosurgeon. Prior to her March 15, 2017 accident, the claimant had a history of low back pain. The claimant injured her back while working for the respondentemployer in A September 17, 2012 note indicates that the claimant was at work transferring a lady when the lady suddenly stopped trying to stand and was falling to the floor. The claimant grabbed the lady and felt a sudden severe pain in her back. On September 28, 2012, the claimant was released to return to normal activities. On March 19, 2013, the claimant underwent an MRI and the history indicates that she injured her back

7 Hampton-G two months earlier lifting a patient. According to the medical record, the claimant was experiencing right radiculopathy. The MRI showed a defect at L5-S1 and noted, there is contact on the right L5 transiting nerve root. On April 22, 2013, the claimant was examined by a neurosurgeon, Dr. Shawn Moore. Dr. Moore noted stenosis at L5-S1 and opined that if the claimant underwent surgical intervention for her radiculopathy it would require right L5-S1 foraminotomy and microdiscectomy. The claimant testified that after she underwent physical therapy her condition improved and she returned to work. However, since she never underwent the recommended surgery, she continued to have periodic back problems. The claimant was involved in another accident in 2016 when she was helping a resident get out of a shower chair. The claimant again went through conservative treatment and returned to work doing the same job. The claimant offered unrefuted testimony that from the time she was released to return to work after the 2016 accident until her March 15, 2017 accident, she never missed work.

8 Hampton-G Opinion Compensability For the claimant to establish a compensable injury as a result of a specific incident, the following requirements of Ark. Code Ann (4)(A)(i)(Repl. 2002), must be established: (1) proof by a preponderance of the evidence of an injury arising out of and in the course of employment; (2) proof by a preponderance of the evidence that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann (4)(D), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was caused by a specific incident and is identifiable by time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). I find that the claimant sustained a compensable injury to her lower back. The claimant s injury was an accidental injury that arose out of and in the course of her employment. The claimant testified that she injured her back while performing an assisted

9 Hampton-G lift of a resident. The claimant reported the incident to her supervisor immediately and was seen by Dr. Richey the next day. An NHS Leasing and Consulting Employee Incident Treatment form dated March 16, 2017 verifies that the claimant did in fact see Dr. Richey on March 16, Additionally, the claimant s back injury required medical services. The claimant received medical treatment in the form of prescription medication and physical therapy. Also, there is medical evidence supported by objective findings that the claimant sustained a lower back injury. The objective findings are noted as, mild anterior subluxation at the L4-5 level which was noted as being new compared to the prior study of 3/19/2013". Finally, it is clear that the March 15, 2017 workplace accident caused the claimant s new problems at the L4-5 level. First, I note that Dr. Richey, the respondent-employer s selected physician, attributed the cause of the claimant s back problems to lifting a patient. Next, it is noteworthy that Dr. Richey was of the opinion that the claimant s condition on March 16, 2017 was severe enough that she needed to be off work

10 Hampton-G for a period and required restrictions upon returning to work. Although Dr. Kaddoura examined the claimant on March 6, 2017 and ordered an MRI, he did not take her off work and he did not place any restrictions on her. This indicates that there was a significant change in the claimant s condition after the March 15, 2017 incident. Evidence of the change is also seen in the fact that after each of the claimant s prior work accidents, she was able to undergo brief periods of conservative treatment and return to work without restrictions. The majority, in affirming and adopting the opinion of the Administrative Law Judge, felt that the claimant had credibility issues because she had difficulty remembering facts regarding her prior back injuries. However, the claimant offered testimony that she had memory problems, which is corroborated by medical records prior to her March 15, 2017 accident. On November 15, 2015, Dr. Kaddoura diagnosed the claimant as having anxiety disorder as well as major depressive disorder. Dr. Kaddoura also noted that the claimant was on Wellbutrin for depression and that she at one time was admitted to a psych unit when her sister

11 Hampton-G passed away. By August 29, 2016 Dr. Kaddoura noted that the claimant was having some memory issues. The memory issue was again noted on October 24, On March 6, 2017, Dr. Kaddoura notes that the claimant s husband was trying to divorce her and she was very sad about that and that even her kids didn t want her inside the house. Dr. Kaddoura noted that the situation was making the claimant very emotional. Given the claimant s well-documented memory problems and the emotional upheaval in the claimant s life, I do not find the fact that she is a poor historian evidence that she lacked credibility. Therefore, based on the aforementioned, I would find that the claimant has established by a preponderance of the evidence that she sustained a compensable lower back injury. Temporary Total Disability Dr. Richey removed the claimant from work through a series of work excuses that began on June 14, In the August 2, 2017 excuse, Dr. Richey indicated that the claimant should remain off work until seen by a neurosurgeon. A medical leave form signed by Dr. Richey

12 Hampton-G indicates that because of the claimant s condition that commenced on March 16, 2017, the claimant is not able to perform work of any kind. Since the claimant was under active medical treatment, unable to work, and has not been released to return to work, the preponderance of the evidence shows that she has been temporarily totally disabled since June 14, 2017 and remained in that status at the time of the hearing. Therefore, I would award temporary total disability benefits starting on June 14, 2017 until a date yet to be determined. Additionally, based on this finding, I would award appropriate attorney s fees. For the foregoing reasons, I must dissent from the majority opinion. PHILIP A. HOOD, Commissioner